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The Iraqi Constitution: Upholding Principles of Democracy While Struggling to Curtail the Dangers of an Islamic Theocracy

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The Iraqi Constitution: Upholding Principles of Democracy While Struggling to Curtail the Dangers of an Islamic Theocracy Roger Williams University Law Review Volume 12 | Issue 1 Article 7 Fall 2006 The rI aqi Constitution: Upholding Principles of Democracy While Struggling to Curtail the Dangers of an Islamic Theocracy Forrest Hansen American University Washington College School of Law Follow this and additional works at: http://docs.rwu.edu/rwu_LR Recommended Citation Hansen, Forrest (2006) "The rI aqi Constitution: Upholding Principles of Democracy While Struggling to Curtail the Dangers of an Islamic Theocracy," Roger Williams University Law Review: Vol. 12: Iss. 1, Article 7. Available at: http://docs.rwu.edu/rwu_LR/vol12/iss1/7 This Notes and Comments is brought to you for free and open access by the Journals at DOCS@RWU. It has been accepted for inclusion in Roger Williams University Law Review by an authorized administrator of DOCS@RWU. For more information, please contact [email protected]. The Iraqi Constitution: Upholding Principles of Democracy While Struggling to Curtail the Dangers of an Islamic Theocracy The [Iraqi] constitution is undemocratic and out of step with human rights norms. David Phillips1 This innovative formulation [of the Iraqi constitution] goes far toward establishing Islamic and democratic values on equal footing. 2 Noah Feldman INTRODUCTION The Republic of Iraq, plagued in the past by oppression, dictatorship, war, ethnic cleansing and discrimination, 3 captivated 1. See Constitution Process Risks a Civil War, Council on FOREIGN RELATIONS, Aug. 26, 2005, http://www.cfr.org/publication/8766/ constitution-process-risks_a_civilwar.html (last visited Nov. 29, 2006) (arguing that the promulgation of the constitution is not an amazing event, but a process that will increase the chances of a civil war). David Phillips is a senior fellow at the Council of Foreign relations who has worked with Iraqi opposition political groups. Id. 2. Op-Ed., Agreeing to Disagree in Iraq, N.Y. TIMES, Aug. 30, 2005, at A19 (recognizing that although the Iraqi constitution is quite vague, it confers upon Iraqis all the rights contained in international agreements that Iraq has signed, as well as establishes democratic principles). 3. See generally Bureau of Near E. Affairs, U.S. Dep't of State, Background Note: Iraq (2006), http://www.state.gov/r/pa/ei/bgn/6804.htm (last visited Nov. 29, 2006) [hereinafter Iraq] (reciting the history of Iraq - the long periods of war and the years of oppression under Saddam Hussein). See generally Cathal J. Nolan, The Longman Guide to World Affairs 182 (1995) (recounting the history of Iraq from a Mesopotamian civilization to a present day sovereign nation). 256 2006] THE IRAQI CONSTITUTION 257 a world-wide audience on October 15, 2005 as Iraqis risked their lives to ratify their Constitution. 4 Only days before this historic event,5 Shiites, Sunni Arabs, and Kurds 6 alike negotiated and 4. Edward Wong, Final Tally Shows Iraqi Voters Approved New Constitution, N.Y. TIMES, Oct. 25, 2005, http://www.nytimes.com/2005/ 10/25/internationallmiddleeast/25cnd-iraq.html?ex=1287892800&en=4e0 737cO063fO4c&ei=5088&partner=rssnyt&emc=rss; see also Associated Press, Iraq's Constitution Distributed to Citizens, MSNBC.com, Iraq's Constitution Distributed to Citizens - Conflict in Iraq, http://www.msnbc.msn.com/ id9584857/print/I/displaymode/1098/ (last visited Sept. 25, 2006) ("[S]ome 4 million copies [were] printed in Arabic - at a rate of 250,000 a day .... "). See Iraqi Election Results, by Province, N.Y. TIMES, Oct. 25, 2005, http://fairuse.laccesshost.com/news5/nytll.htm (reporting through empirical studies that two of the three Sunni dominated provinces largely rejected the constitution, while the third province passed it by 15%). If the third Sunni province had rejected the constitution, it would not have passed. See also Richard A. Oppel Jr., Rice In Baghdad, Urges Sunni Role in the Constitution, N.Y. TIMES, May 16, 2005, at Al (recounting Secretary of State Condoleezza Rice's visit to Iraq and her encouragement to the Shiites and Kurds to include the Sunni's in negotiations for a new constitution). 5. See Kirk Semple, Iraqi Rivals Trying to Fine-Tune Constitution for Voter Approval, N.Y. TIMES, Oct. 11, 2005, at A8 (remarking that Iraqis made last minute changes to the constitution in order to appeal to a wider audience and hopefully insure ratification). See, e.g., Editorial, Off Course in Iraq, N.Y. TIMES, July 21, 2005, at A28 (noting that some experts believed the constitution to be a complete failure). The Iraqi Constitution, after a two week extension, was completed and signed on August 28, 2005. See also Dexter Filkins, Sunni Leaders Offer Mixed Views of Deal on Constitution, N.Y. TIMES, Oct. 12, 2005, http://www.nytimes.com/2005/10/12/ internationallmiddleeast/12cndiraq.html?ex= 162180800&en=dd6b6f375497 4d42&ei=5070 (noting that throughout the negotiating process the Sunnis have varied in their degree of participation and involvement). See also Dexter Filkins & James Glanz, Leaders in Iraq Extend Deadline on Constitution, N.Y. TIMES, Aug. 16, 2005, at Al (insisting that forcing the Iraqis to a consensus within a short period of time may increase tensions among the major groups). On December 15, 2004, for the first time in Iraq's history, eager Muslims and Kurds packed voting booths for the election of the National Assembly, whose function would be to draft a permanent constitution and then present it to the country for a national referendum on October 15, 2005. Kristen A. Silt, Islamic Law and the Making and Remaking of the Iraqi Legal System, 36 GEO. WASH. INT'L L. REV. 695, 697 (2004). The National Assembly succeeded in drafting a constitution defying many critics and pessimists. The Iraqi Constitution, after a two week extension, was completed and signed on August 28, 2005; Aneesh Raman, Cal Perry & Enes Dulami, CNN.com - Committee Signs Iraq's Draft Constitution - Aug 28, 2005, http://www.cnn.com/2005/WORLD/meast/08/28/iraq.constitution/index. html (last visited Sept. 25, 2006). 6. See infra Part I.A.1 (identifying the three distinct groups that occupy present day Iraq and their divergent interests and policies in the re- 258 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 12:256 adamantly debated the language and structure of the constitution, attempting to address the numerous issues facing an emerging 7 democracy in the Middle East. One of the most significant and controversial issues of the new constitution is the sphere of influence allotted to Islam8 or more specifically, whether the influence of Islam in the newly drafted constitution undermines the principles of democracy set forth therein.9 If the constitution permits Islam a dominant position and unfettered authority, it is likely that an Islamic theocratic Iraq will be born.10 An Islamic theocracy could possibly lead to increased human rights violations, mistreatment of women, and an oppressive state.II On the other hand, if the influence of Islam is diminished and stifled, the Iraqi constitution will never effectuate into respectable law. 12 Therefore, it is important that the Iraqi constitution allow for an Islamic influence, but not to the extent that democratic principles are structuring of the Iraqi state). 7. See Iraq's Constitution: Democracy or Division?, WALL ST. J., Oct. 15, 2005, at A5 (Iraq's constitution additionally faces the issues of federalism, oil revenue, de-Baathification and equal rights). 8. David Rohde, A World of Ways to Say 'Islamic Law', N.Y. TIMES, Mar. 13, 2005, § 4, at 4 (suggesting that the fateful question to address in Iraq is what role Islam will have in the constitution). See Dexter Filkins, Leaders in Iraq Report Progress on Constitution, N.Y. TIMES, Aug. 22, 2005, at Al ("The most sensitive of unresolved issues revolved around the role of Islam, which the drafters have designated as 'a main source of legislation' in the new constitution."). 9. This question assumes to a certain extent that Islam and democracy are functionally compatible. See Ali Iyad Yakub, The Islamic Roots of Democracy, 12 U. MIAMI INT'L & COMP. L. REV. 269, 270 (2004) (arguing that Islam and democracy are compatible in that they have the same objectives for society, such as aims of justice, equality, freedom of expression and a fair criminal procedure). But see Hugh Goddard, Islam and Democracy, POL. Q. Jan.-Mar. 2002 at 3, 4 (2002) (arguing that Islam is the anathema to democracy because Islam calls for a state governed by God). 10. See Filkins & Glanz, supra note 5, at A8 (emphasizing that the Shiite Muslims are more than willing to form an Islamic theocracy). 11. See Ann Elizabeth Mayer, Book Review, InternationalHuman Rights and Islamic Law, 99 AM. J. INT'L L. 302, 303 (2005) (stating that governments rely on Islamic law to justify policies of discrimination, persecution and repression). 12. See Ash U. Bali, Justice Under Occupation: Rule of Law and The Ethics of Nation-Building in Iraq, 30 YALE J. INT'L L. 431, 450 (2005) (indicating that the principles Arab unity, nationalism, social and economic justice are the core values upon which Iraq must build in order to have a functioning, law-abiding society). 2006] THE IRAQI CONSTITUTION compromised. 13 This Comment argues that the influence of Islam in the Iraqi constitution does not undermine fundamental democratic principles provided that it is strictly interpreted. 14 This Comment draws from the constitutions of Egypt and Iran in order to comprehend the status of Islam in the Iraqi constitution. 15 Egypt and Iran represent opposite sides of the possible spectrum for Iraq, the former being a secular democracy and the latter an Islamic theocracy.' 6 This Comment individually evaluates articles defining the influence of Islam in the Iraqi constitution and contrasts those to similar articles in the Egyptian and Iranian constitutions.
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